Vol. XLI No. 37 September 10, 2017

Privacy is now an inherent right, but will Parliament act?

Teesta Setalvad

BY ruling not just that privacy is a fundamental right but that it is an integral part of the right to liberty, a nine judge bench of the Supreme Court, on August 24, held unanimously that the right to privacy would come under both the right to life, liberty (Article 14, Article 21 of the Constitution) and therefore part III of the constitution. The fundamental reasoning behind the verdicts delivered separately and as a collective was that these rights are the inherent rights of man, born with him, not granted by statute (even the constitution) and hence cannot be suspended or taken away. This settles jurisprudence on the question that had been hanging fire since the Emergency.

Moments of high drama unfolded before the Supreme Court and can be realised on a reading of the judgement delivered by Justice Dr DY Chandrachud, one of the nine judges who sat on the privacy bench who authored the lead 266 page judgement on behalf of chief justice Jagdish Singh Kehar, Justices RK Agrawal, S Abdul Nazeer and himself. Son of a former chief justice of India, YC Chandrachud who had delivered the infamous ADM Jabalpur judgement from the exalted benches of the same court, in 1976, he overruled his father’s judgement. Justices YC Chandrachud and Bhagwati had, through this widely criticised judgement upheld the suspension of the right to life by a presidential order (Article 359 of the Indian Constitution) and legitimised the suspension of freedoms by Indira Gandhi during the Emergency. In a swift and meticulously argued reversal, Chandrachud (junior) set this 1976 verdict aside.

Democracy and freedoms are preserved, most often by the lone, dissenting voice. So it was in 1976 with the dissenting ruling of Justice HR Khanna who emphatically held that the suspension of the right to move any Court for the enforcement of the right under Article 21, upon a proclamation of Emergency, would not affect the basic right to life and liberty. What this says is significant. Even if Article 21 had not been outlined in the Indian Constitution, in a civilised society governed by the rule of law, it would not and is not permissible for the State to deprive a person of his life and liberty without the authority of the law. So, therefore, the remedy for the enforcement of the right to life or liberty would not stand suspended even if the right to enforce Article 21 is suspended. Justice Khanna held that while wide powers to order preventive detention are vested in the State, there is no antithesis between the power to detain and power of the court to examine the legality of such a detention.

At the crux of the reversal of ADM Jabalpur (1976) is the unequivocal assertion by all nine judges that the rights to freedom and liberty are primordial rights. These were recognised in the Kesavananda Bharati judgement (1975), that led to the supersession of judges and declaration of Emergency. Calling the judgements rendered by all four judges constituting the majority in ADM Jabalpur as “seriously flawed” the Supreme Court of India has now, again (in Para 119 of the privacy judgement) re-iterated that “Life and personal liberty are inalienable to human existence.”

There will be deeper implications of this privacy verdict that will now play out as citizens invoke it to ensure that in all aspects of life – surveillance by the state, sexual preference and the criminalisation of homosexuality, the right to eat food (including beef)  of one’s choice – these rights are, hopefully, actualised.

What this really means is, that if a particular regime, be it the majoritarian ones of the past or the one that hovers over all Indians since May 2014 particularly, consigns basic freedoms of life and liberty to the dustbin and fixes curbs on these through presidential order and constitutional amendments that do not pass the liberty test, they stand overruled.

The core of the nine-judge verdict interprets the fundamental freedoms of the constitution upholding that the constitution was made for conscientious dissenters as much as for ruling parties, for the able and the disabled, for the LGBT community and others, for political minorities even more than for majorities. It gives us the rule of law as the birthright of every citizen in a democracy. Privacy is now entrenched as inalienable right. Each of these will now stand tested in individual cases against this monumental jurisprudence. The right to privacy can be curtailed in public interest only by a law which can be once again tested for its constitutional validity. Privacy, the court holds, is about the reservation of a “private space to be left alone”. Recognising the full amplitude of the need for privacy, the court holds that “the ability of an individual to make choices lies at the core human personality”.

What has already been widely discussed and rightly so, is the impact of the Privacy judgement on a deleterious interpretation of Article 377 of the code of criminal procedure and the data mining policy of the government.

In 2009, a division bench of the Delhi High Court in the famed Naz Foundation judgement had by its widely acclaimed ruling de-criminalised homosexuality. In Suresh Kumar Koushal v/s Naz Foundation (2013), the Supreme Court had overturned the judgement. The specific issue of interpreting Section 377 of the CRPC is now pending before a wider bench. In its 2009 ruling, the Delhi High Court had held that: “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”

  Despite the rather embarrassing verdict of the Supreme Court of India in 2013, now the Court had held (in the Privacy judgement) that privacy is about the reservation of a “private space to be left alone”.  “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place.”

The judiciary has remained fractured in its view and while this nine-judge verdict offers clarity and solace, it may not solve the attendant confusions. Today, we have several (smaller) benches of India’s Supreme Court adjudicating on crucial constitutional issues, even when the constitution and the court’s own judgements have cautioned that only a five member bench should look at questions constitutional.  This means that a not so well-adjudged or balanced view also becomes an interpretation of fundamental rights and the law. When it was laid down that at least five judges should speak on matters constitutional, an irrefutable logic backed this argument: sound judicial mind or jurisprudence can be espoused only when there are enough minds – enough balance – on any given fundamental question.

Look at the contradictions otherwise. In its historic judgment in `Justice Puttaswamy vs Union of India' (2012), the Supreme Court held that privacy is a fundamental right. In doing so, it also removed the basis for its decision in `Koushal' (2013), which had upheld the constitutionality of Section 377 of the Indian Penal Code (IPC). Still, until this specific issue is adjudicated by a larger bench, the confusions stay.

So while we draw solace from these pronouncements, key questions will remain. Will other courts follow the judgement as laid down here? Within a democracy – a concept that often gets collapsed to electoral dynamics of vote blocks and numbers -- there are many groups, or “discrete and insular minorities“ who remain excluded from the everyday exchanges and compromises of democratic politics, which tend to prioritise political expediency over protection of rights.

And, key to all questions, will parliament act? In 2016, the Lok Sabha voted against Shashi Tharoor's bill to decriminalise homosexuality. Governed as we are by a worldview that is not simply majoritarian but one that believes liberties and freedoms are anathema to individuals and their freedoms to live, express and exist, it is unlikely that this Indian parliament is likely to take the conclusions of the Privacy Judgement to its logical conclusion.